K.S. Gupta vs Vinay George

This revision has been filed under Section 397, read with Section 401 of the Cr.P.C., against the judgment dated 01.11.2017, passed by learned A.S.J.,

Jabalpur in Criminal Appeal No.56/2017, whereby judgment of conviction, sentence and compensation dated 10.01.2017, passed by learned J.M.F.C.,

Jabalpur in Criminal Case No.9265/2005 for the offence under Section 138 of the Negotiable Instrument Act has been modified.

The complainant/applicant has filed the Criminal Complaint Case No.926/2005 before the J.M.F.C., Jabalpur under Section 138 of the Negotiable

Instrument Act alleging that the respondent-accused executed a cheque of Rs.1,50,000/- on 12.02.2004. The same was presented for enchashment

was dishonoured. Thereafter, the complainantapplicant had given appropriate notice and within the prescribed time, filed the criminal complaint case

under Section 138 of the Negotiable of Instrument Act.

Learned J.M.F.C. by order dated 09.11.2009 dismissed the complaint holding that the applicant/complainant failed to prove that through the cheque

Ex.D/1 of Rs.1,50,000/- was executed by the respondent- accused, but the cheque amount was paid to the complainant/applicant by receipt Ex.D/2.

Subsequently, Criminal Miscellaneous Petition No.9389/2013 was filed and vide order dated 04.09.2013, the case was remitted to the trial Court and

the order dated 09.11.2009 was set aside and directed to examine the hand writing expert and then to pass judgment afresh. Therefore, learned

J.M.F.C, Jabalpur subsequently allowed the parties to examine hand writing expert and after availing opportunities to both the parties pronounced the

judgment dated 10.01.2017, whereby the respondent-accused has been convicted and sentenced for six months rigorous imprisonment and also was

ordered to pay the cheque amount with interest totaling Rs.2,85,000/- as compensation under Section 357 of Cr.P.C.

The respondent-accused preferred Criminal Appeal No.56/2017 before the A.S.J., Jabalpur. The appellate Court vide judgment dated 01.11.2017,

held that the accused was suffering from the rigmarole of trial for last 13 years, holding that the cheque was executed by the respondent accused, but

he did not repay after notice etc. Hence, he is liable for the punishment. Later, he received Ex.D/2 on 09.07.2004 paid the amount to the complainant.

Therefore, exercising his discretion allowed the appeal and ordered to convict the accused under Section 138 of the Negotiable Instrument Act and

sentenced him till arising of the Court and also imposed fine of Rs.10,000/- only. Out of this amount the complainant is to receive Rs.5,000/- after the

appeal period is over, as compensation.

Aggrieved by this, the applicant has filed this revision on the ground that the order of the appellate Court is perverse and appellate Court erred in

believing the receipt Ex.D-2, which was forged one. As per the evidence adduced by the applicant-complainant. It is claimed that execution of the

cheque and non-payment of the amount has been proved and not disputed. The only contention of the respondent/accused was that the respondent has

paid the cheque amount to the complainant.Â

Learned appellate Court has also failed to appreciate the evidence of the complainant witnesses, but believed the hand writing expert examined by

the respondentaccused, whereas opinion of hand writing experts are merely opinion and not the conclusive proof.

Per contra, learned counsel for the respondent- accused argued that the hand writing expert report was rightly considered by the appellate Court

and Ex.D/2, the receipt by which the respondent-accused succeeded in proving refund of amount Rs.1,50,000/- to the complainant. Therefore, the

complainant’s grievance is not sustainable. It is also contended that the hand writing expert examined by the complainant is a private one whereas

hand writing expert examined by the accused is the Government hand writing expert posted at the office of Additional State Examiner of the

Questioned Documents, Government of M.P., Bhopal. Therefore, the authenticity of the report submitted by the applicant-complainant is not good as

the hand writing expert examined by the respondent is the official hand writing expert. It is also contended that the respondent is at liberty to rebut the

charges. The respondent has discharged his onus and proved that the amount of Rs.1,50,000/- was repaid. Hence, cheque (Ex.D/1) issued in favour of

the applicant was discharged. There is no legal liability of any amount remained.

Perused the record. Learned counsel for the parties are heard.Â

The provision of Section 139 of the Negotiable Instrument Act, provides for presumption clause, but this presumption mandated by Section 139

includes a presumption that there exists a legally enforceable debt or liability and that is a rebuttable presumption.

It would be appropriate to mention here that the respondent accused did not disclose that he has paid the amount in his reply to the notice issued to

the respondent under Section 138 of the Negotiable Instrument Act. It would also be appropriate to mention that virtually no such reply has been

filed by the respondent-accused. He has not asked any single question to the complainant, at the time of his crossexamining regarding Ex.D/2, nor he

confronted the same. Subsequently, in the examination of accused also the respondent-accused has not taken the plea that he has refunded

Rs.1,50,000/- by obtaining Ex.D/2 receipt allegedly issued by the complainant-applicant. It is also to be noted that the complainant-applicant has

examined the hand writing expert and the Ex.D/2 document has been held to be not signed by the complainant.

The evidence of the hand writing expert, unlike that of a finger print expert is generally of a frail character and its fallibilities have quite often been

noticed. The Court should, therefore, be wary of attaching too much weight to the evidence of handwriting expert. The opinion of the hand writing

expert examined by the respondent-complainant is completely different to that of the opinion of the hand writing expert examined by the applicant-

complainant.

The circumstances prevailing in the case have to be considered after forming opinion on the non-disclosure of the so- called receipt Ex.D/2, by the

respondent-accused in his earlier statement, even in the examination of accused under Section 313 of Cr.P.C., create a reasonable doubt on the

genuineness of the document. Needless to say that the accused-respondent did not even confronted this document with the complaint at the time of his

cross examination. In this regard, the explanation offered by the respondent that this document was lying with the income tax file, therefore, it was not

available earlier, hence, the same could not be produced. But, this explanation also do not hold much water.The respondent-accused has not examined

any person or staff of the Income Tax Department with whom the document Ex.D-2 was lying. The Court must see for itself and with assistant of the

expert come to its own conclusion whether it can safely be held that the two writings are by the same persons. The Court may accept the fact prove

only when it has specified by its own observation that it is safe to sought opinion of the expert. In the present case, there is no supportive evidence and

when the accused/respondent did not disclose document Ex.D/2 till the same was filed at the defence stage. No reasonable explanation was offered

to explain why the document was not produced or pleaded earlier. It would be unsafe to exercise the power of discretion in favour of the respondent-

accused, whereas the hand writing expert examined by the complainant has clearly indicated and opined that Ex.D-2 receipt do not contain the

signature of the complainant. The circumstances is highly tilted to support this view. In the case of Ramji Dayawala& Sons Pvt. Ltd. Vs. Invest

Import, AIR 1981 SC 2085, the Supreme Court has held that :-

“Proof of handwriting by an expert is no proof of the facts in the document. Proof of handwriting is not tantamount to correctness of contents.â€​

In such circumstances, it would be appropriate to hold that learned appellate Court has fallen in error to hold that Ex-D/2 receipt has been issued

by or executed by the complainant.

The judgment and sentence passed bylearned A.S.J., Jabalpur in Criminal Appeal No.56/2017 is, therefore, set aside. The judgment and sentence

passed by learned J.M.F.C., Jabalpur dated 10.01.2017, in Criminal Case No.9265/2005, is restored with the modification that the

complainantapplicant is entitled for compensation of (Rs.1,50,000/- x 9%Â x 14 years = Rs.1,89,000/- + 1,50,000/-) Rs.3,39,000/- under Section 357 of

Cr.P.C. With the above modification of compensation, this revision is allowed and the judgment dated 10.01.2017 is restored.